Competition Litigation

• Published date: 25 May 2022
• Subject Matter: Anti-trust/Competition Law, Antitrust, EU Competition , Cartels, Monopolies
• Law Firm: Preslmayr Rechtsanw'lte OG
• Author: Mr Dieter Hauck

1 General

1.1 Please identify the scope of claims that may be brought in your jurisdiction for breach of competition law.

Enforcement by private competition litigation in Austria is not restricted to damages claims. Private bodies have standing to file for cease and desist (Abstellung) orders or for decisions of finding (Feststellung) before the Cartel Court (Kartellgericht). Such actions for cease and desist or finding are attractive where no decisions for a fine by a competition authority is or is yet available. The Cartel Court has never had jurisdiction to hear claims for damages - this jurisdiction rests with the general civil courts.

An infringement of competition law may also infringe Sec. 1 of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb). The Unfair Competition Act also provides a basis for cease and desist (Unterlassung) orders. In such cases, recovery (Beseitigung) and/or damages (Schadenersatz) may be awarded by the commercial courts (Handelsgerichte), hearing cases under the Unfair Competition Act. Under the Cartel Act as well as under the Unfair Competition Act, final decisions can be published.

The civil courts hear cases for finding, cease and desist, recovery and damage actions, as well as actions to have a contract avoided. However, while there are several follow-on cases pending after the Austrian Elevators cartel case, an Austrian banking case and the European Trucks case, there are, to date, only very few final decisions on private cartel law enforcement before the civil courts. These relatively small cases, relating to a driving school cartel, were not reviewed by the Supreme Court (Oberster Gerichtshof - OGH).

The European Court of Justice (ECJ) rendered a preliminary ruling judgment on the question of damages claimed by customers of third parties (so-called 'umbrella claims'). Although the Austrian Supreme Court had ruled that Austrian law provides no basis to assert such claims, the ECJ found that 'Article 101 TFEU must be interpreted as meaning that it precludes the interpretation and application of domestic legislation enacted by a Member State which categorically excludes, for legal reasons, any civil liability of undertakings belonging to a cartel for loss resulting from the fact that an undertaking not party to the cartel, having regard to the practices of the cartel, set its prices higher than would otherwise have been expected under competitive conditions' (ECJ 5.6.2014, C-557/12). Consequently, a victim of umbrella pricing, i.e. an indirect customer, may claim compensation for the loss caused by the members of a cartel, even if it had no contractual links with any of them, where it is established that the cartel at issue was, under the circumstances of the case and, in particular, considering the specific aspects of the relevant market, liable to have the effect of umbrella pricing being applied by third parties acting independently, and that those circumstances and specific aspects could not be ignored by the members of the cartel. It is up to the referring court to determine whether those conditions were met.

Upon a related request for a preliminary ruling sent to the ECJ in May 2018 (OGH 17.5.2018, 9 Ob 44/17m), the ECJ ruled (12.12.2019. C-435/18) that 'Article 101 TFEU must be interpreted as meaning that persons who are not active as suppliers or consumers on the market affected by a cartel, but who have granted subsidies in the form of promotional loans to purchasers of the products offered on that market, may demand that undertakings which participated in the cartel be ordered to make good the damage suffered by the persons concerned because the amount of the subsidies was higher than it would have been in the absence of the cartel, so that they could not use the difference for other more profitable purposes'. Thus, a general basis of claim was confirmed for a public entity who provided subsidies without being a supplier or customer on the relevant market.

No decisions on umbrella claims have been handed down so far by Austrian Courts.

Certain infringements of competition law can qualify as criminal offences. The Criminal Act (Strafgesetzbuch) explicitly penalises bid rigging in Sec. 168b. Cartel behaviour may also constitute fraud; however, in such cases the prosecution would need to prove the damage caused and intended. Anyone harmed by such offences (Privatbeteiligter) can join the criminal proceedings seeking compensation.

Finally, breaches of competition law may cause labour law litigation, e.g. where an employee, having engaged in anti-competitive behaviour, challenges his termination.

1.2 What is the legal basis for bringing an action for breach of competition law?

Actions could be based on the Cartel Act, the Unfair Competition Act and/or general civil law in conjunction with competition law. However, some actions are only available to certain plaintiffs - see the answer to question 1.5.

The EU Damages Directive was transposed into national law in 2017.

1.3 Is the legal basis for competition law claims derived from international, national or regional law?

The legal basis for private damage actions is national law (see the answers to questions 1.1 and 1.2). Following the case law by the ECJ on private enforcement (ECJ 20.9.2001, C-453/99 Courage/Crehan and ECJ 13.7.2006, C-295 and 298/04 Manfredi), Articles 101 and 102 Treaty on the Functioning of the European Union (TFEU) are directly applicable but do not contain explicit rules on damages. However, it is long-standing case law that the possibility for anybody to claim damages greatly enhances the effectiveness of competition rules. In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to establish the detailed rules governing the exercise of the right to claim compensation for the harm resulting from an agreement or practice prohibited under Article 101 TFEU, including those on the application of the concept of 'causal relationship', provided that the principles of equivalence and effectiveness are observed (ECJ 13.7.2006, C-295 and 298/04; ECJ 5.6.2014, C-557/12). 1.4 Are there specialist courts in your jurisdiction to which competition law cases are assigned? The Cartel Court is a specialised division of the Vienna Court of Appeals (Oberlandesgericht Wien) and has exclusive jurisdiction to hear actions under the Cartel Act. Its decisions can be appealed to the Austrian Supreme Court sitting as the Cartel Court of Appeals (Kartellobergericht). Civil courts hear actions under the Unfair Competition Act and under general civil law for damages. Except for Vienna, where special commercial courts exist both at district and regional level, the ordinary civil courts sit as commercial courts in such cases. See also the answer to question 1.6. 1.5 Who has standing to bring an action for breach of competition law and what are the available mechanisms for multiple claimants? For instance, is there a possibility of collective claims, class actions, actions by representative bodies or any other form of public interest litigation? If collective claims or class actions are permitted, are these permitted on an 'opt-in' or 'optout' basis? Any undertaking or association of undertakings with a legal or economic interest may file an action before the Cartel Court. This criterion of interest is not applied strictly. However, an application for finding requires a special interest. The Cartel Act explicitly states that seeking compensation for damages creates a sufficient legal interest for an action for declaratory relief. Private individuals (in the sense of non-entrepreneurs) do not have standing before the Cartel Court. However, applications may be brought by the Austrian Chamber of Commerce (Wirtschaftskammer 'sterreich), the Chamber of Employees (Bundeskammer für Arbeiter und Angestellte) and the Presidents' Committee of the Austrian Agricultural Chambers (Pr'sidentenkonferenz der Landwirtschaftskammern 'sterreichs). Further, the Federal Competition Agency (Bundeswettbewerbsbeh'rde), the Federal Antitrust Prosecutor (Bundeskartellanwalt) and the sector-specific regulators have standing before the Cartel Court. The above-mentioned representative bodies or competitors may (alternatively or additionally to an application before the Cartel Court) file a cease and desist and/or recovery action under the Unfair Competition Act with the commercial courts. Damages can also be claimed by customers (OGH 24.2.1998, 4 Ob 53/98t) in the Civil Courts. Both the Austrian and the EU prohibition of cartels and abuse of market dominance provisions are generally considered protective laws (Schutz gesetze) according to the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch). Moreover, literature mostly agrees that competition law not only protects free competition (and thereby competitors), but also customers. Therefore, competitors as well as customers may bring a damages claim in civil or commercial courts if they have suffered harm. The ECJ has extended this to non-market-participants (see also the answer to question 1.1 - subsidies). Possibly, contracts also support claims depending on their contents; e.g., plaintiffs could argue that defendants infringed (pre-)contractual information or notification obligations by not disclosing (allegedly) cartel-inflated prices. Further, an agreement may be void because of a breach of competition law. The indirectly harmed (e.g. the customer of someone who purchased from a cartelist) have a valid claim under certain circumstances (see also the answer to question 5.2).

Both individuals and companies having a civil law claim can also seek compensation before the criminal courts, provided criminal proceedings were initiated. Such criminal proceedings, due to the stricter legal requirements and the level of proof, are not always initiated, and damages will only be adjudicated in very clear-cut cases. Often the criminal...